back to article NZ government makes software 'unpatentable' (for now)

The New Zealand government has decided to push through the country's contentious new Patent Bill without making any amendments to it, thereby making software "unpatentable". However, NZ's commerce minister Simon Power noted that the country's Intellectual Property Office would draft new guidelines once the Bill has passed the …


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  1. Lou Gosselin

    Error: Cannot reconcile.

    "In March, the NZ Commerce Committee recommended that computer programs should not be a patentable invention."

    "The rulebook will eventually allow inventions that contain embedded software to be patented, he said."

    Probably a political scheme to appease voters today, and get corporate kickbacks tomorrow.

    1. Anonymous Coward
      Paris Hilton

      Finally, a policy that isn't 100% self serving...

      Almost certainly, with the John Key administration... Pretty much all they've done since they got into power is work to improve their own lot, and that of their favourite lobbyists. This is the first policy of theirs I've seen that doesn't boil directly down to "steal from the poor and give to the rich"

      Anonymous Coward today, since I've technically just breached contract :P And Paris, since aside from this she'd run the country better.

    2. SImon Hobson Silver badge

      RE: Error: Cannot reconcile.

      >> "In March, the NZ Commerce Committee recommended that computer programs should not be a patentable invention."

      >> "The rulebook will eventually allow inventions that contain embedded software to be patented, he said."

      There is no problem there.

      Suppose I submit a patent for (just plucking something out of the air) "An improved method for temperature control of living spaces" - and give the apparatus a description along the lines of "The apparatus control the output from the heating system based on the temperature of the internal space". Anyone with a few brain cells switched on may recognise that as a thermostat !

      Now, I could make it an old fashioned mechanical jobby with a bi-metallic strip etc, or I could make it an enhanced functionality type with some software running on an embedded processor (as many are these days). Indeed, I may add to the description things like "... and taking into account the external temperature, the initial temperature of the living space, and the the normal rate of rise of temperature so as to calculate an optimal switch on time prior to a user set desired occupancy time for the space". In the latter case, I've described a more sophisticated device that will adjust the turn on time of the heating so as to get the room up to temperature for the time set by the user - it switches on later in warm weather and earlier in cold weather. For that, embedded software would be "almost" certainly required, though it could just about be made to work by mechanical means.

      Yes, I know both are now commonplace and not patentable any more, I only offer it as a simple example - just assume for the sake of example that there were no prior art.

      The invention AS A COMPLETE SYSTEM is patentable - ie a thermostat with specific functions and capabilities enabled by certain inventions (ie algorithms). The software embedded within the device is not itself patentable - though it can be protected by copyright.

      1. Lou Gosselin

        Re: Thermostat

        In that example, maybe the physical incarnation could have been patented.

        But personally I would still argue that the software algorithms should never be patented - unless there's a breach of copyright law, other developers should not be prevented from deploying their own temperature control algorithms.

  2. brudinie
    Thumb Up

    If only the US senate had the same sense.

    Computers programs do not need to be patentable.

    You obfuscate your source code, compile it or do whatever you can to make it hard for someone to steal. That should be good enough!

    1. Lou Gosselin

      Re: If only the US senate had the same sense.

      Or, it's perfectly sensible to use copyright.

  3. Jeremih

    Great Idea!

    Justin Frankel, the software designer behind Winamp, recently said in an interview with that software patenting was a major problem for developers. Very interesting interview, especially given what is happening in New Zealand.

    This is the link to the video.

  4. Anonymous Coward

    Should be Copyright - its Patently Obvious

    You cannot patent the images and words in a book; you copyright them.

    You should not patent the images and code in a program; you copyright them.

    Which, by the way, copyrights and patents are mutually exclusive - so if you have a software patent, you cannot get that software copyrighted... and patents only last 17-25 years. Copyrights are right now nearly indefinite...

    1. PT

      Patently obvious?

      I guess the news hasn't yet reached the software lawyers, who regularly claim both, as well as claiming that your purchase is really a rental so you have no right of first sale and may not examine it.

      Still, bravo New Zealand! I hope you're strong enough to stand up to the trade sanctions.

    2. Lou Gosselin

      Re: Should be Copyright - its Patently Obvious

      "Which, by the way, copyrights and patents are mutually exclusive"

      Says who?

      1. Ocular Sinister

        Re: Says Who

        If you patent something you have to provide publicly accessible documentation of high enough detail that someone can copy your idea for a reasonable fee. This is mutually exclusive to having a copyright, which expressly denies people the right to copy your work and carries no requirements for documentation. I don't know if there are any laws preventing you from copyright and patenting the same idea, but it would be a waste of money to do so.

        1. breakfast

          Difference with copyright

          The differences are several but the immediate one is that copyright protects your implementation, but a patent covers the process.

          In software terms, copyright means that if you steal my source code you're in breach, if you write your own to do the same thing you're probably alright. But if I hold a patent on the process then any code that can be interpreted as doing the patented things could be in breach of my patent.

          My own feeling is that maybe a half-way house would be better, a soft patent that behaves like a regular patent but only lasts for maybe 12 months ( possibly with the right to extend it if you can show you have brought an implementation of that patent to market ) before it times out.

        2. Lou Gosselin

          Re: mutually exclusive

          "If you patent something you have to provide publicly accessible documentation of high enough detail that someone can copy your idea for a reasonable fee. This is mutually exclusive to having a copyright"

          Firstly, there is no fee to read patents, at least in the US (go to

          Secondly, software patents (as well as others generally) rarely contain working code, just legalize and descriptions, written for and by lawyers. Patents can even be filed prior to having a working implementation.

          Take a look at any of the mp3 patents owned by thomson (at You'll see no implementations which would be useful for public or developer use. Of course open source is useful for filling that gap, but people still owe royalties when using third party code; after all, that's what software patents are all about.

          So while it's true that the patent application itself may be public domain, that doesn't mean patent holders loose copyright for their actual code and software.

    3. Hungry Sean

      where do you get mutual exclusion?

      Patents cover a method or a concept or a means of design-- in software, that would be either the function of the software or an algorithm used in the software. The code itself is an implementation that either serves said function or implements the algorithm in question. If you fire up adobe reader, the first thing you'll be confronted with is a list of about a hundred patents that pertain to their software.

      I'm not a big fan of patents in general, but I don't think patenting, let's say, a method for recognizing human speech, is any more ridiculous than patenting a method for rolling steel. Where I think the real nasties come in is that the bleeding edge of high tech is so specialized and so far beyond anyone outside a handful of people (generally the ones filing the patents) that it is very difficult for a patent office to be able to find staff who are able to determine whether or not an invention is really novel and are willing to do so on a government salary.

  5. Marcel Esser
    Thumb Up

    So, basically...

    ...New Zealand is the only western democracy that listens to reason. Sort of makes me want to live there.

  6. kissingthecarpet
    Thumb Up

    The obvious choice

    Software being unpatentable is the normal, obvious way to go. Software patents are a crazy idea. They're the sort of thing the Mafia would invent - only a country like the US would adopt them. I cannot see how patenting software enhances innovation or competition, in fact it has a chilling effect - look at all the FUD surrounding GNU/Linux.

    The worst thing about them is that, contrary to what some posters seem to believe, its not about patenting an application & its specific source code(copyright & licensing protects that). Software patents can be for say "a method of updating computers over a network" or something vaguer than that. You don't have to write a line of source code.

    Its just a scam.

  7. Paul McClure
    Thumb Up

    Thumbs up.

    Patents are good for decades and the drug industry has shown that with a little reworking many decades. What software is so special that it's not replaced every couple of years? Even the venerable IP schemes have morphed over time. Good call.

  8. Anonymous Coward
    Anonymous Coward

    Not so simple

    There are three things here that everybody wants to lump into one category: mathematical equations, computer algorithms and computer software. Each of these are vastly different from the others. One of these falls into the traditional realm of patents, one falls into the traditional realm of copyright and the third is generally a fundamental science and is rarely monetizable. There are important reasons why each category is treated separately and why certain types of products fall into each category.

    And for anyone trying to throw out the crap about Turing showing that a computer program is essentially a math equation, any 2-bit physicist can show you that the entire universe is essentially a math equation. So I'd better hear you arguing against ALL patents and copyrights.

    1. spodula

      Well how about a more fundemental angle.

      Patents are all about fostering innovation. They do this by providing an exclusive right for someone to use or licence an invention for a fixed period of time. Its worth noting that this is not the SOCIAL AIM of a patent, merely the EFFECT. In return, the patentee deposits full information about how the patent works in the Patent office.

      Any particular class of invention that has the effect of blocking innovation rather than promoting it, runs conterary to the intention of a patent, and therefore should not be patentable.

      IMHO, this includes business method patents, and pure software patents (Where exclusive use in those fields can stifle innovation for decades)

      IMHO, this does NOT include pharmacuticals, or most physical inventions, even ones controlled by a computer, mainly because on balance, restricting patents on these these *would* be likely to stifle innovation.

  9. pan2008
    Thumb Down

    yeh right!

    Who produces software in NZ? they are all surfing or bungee jumping, so lets make all software (that other nations produced) 'unpatentable'. Since when people should work for free and give their ideas and code for free? Last time I went to work I expected a cheque. If you don't expect a pay cheque I commend your selfishness!!

    1. Anonymous Coward
      Anonymous Coward

      You can write code for free, or you can write code for cash...

      The choice is yours. Both are much easier to do if you can be reasonably sure that you're not going to find yourself at the sharp end of a patent claim that will cost you millions to defend even if you know you're in the right.

      Software patents are only good for lawyers. Unfortunately, guess who make the laws.

    2. Mike Smith

      Yes. Right.

      "Who produces software in NZ? "

      Maybe you should ask tha question again in a few years time. I see this as a real stimulus to innovation - there's a chance now that we might see good new products coming out of NZ without the risk that some snotgobbling legal chancer will put the developers out of business.

      Put it another way - if you were a small start-up and had a good product idea, would you really base your company in a country full of litigious trolls and avaricious lawyers, or would you opt for somewhere rather less willing to support frivolous lawsuits?

      1. BristolBachelor Gold badge

        @Mike Smith

        "there's a chance now that we might see good new products coming out of NZ without the risk that some snotgobbling legal chancer will put the developers out of business."

        That's a nice idea, but the problem is that those countries that allow someone to patent things like "1+1" stop anyone using that "invention" in a product in that country.

        It doesn't matter if the design or manufacturing is done in NZ, you still cannot sell it in a country that considers "1+1" an invention.

        Just for the record, if you invent a new type of engine that is more efficient, and inside the engine control uses "1+1", I'm happy for you to patent your new engine, but not "1+1".

    3. fred #257

      I call Troll

      ... on pan2008.

      Either that or he hasn't managed yet to figure out the difference between patents and copyright.

      Doesn't seem to know the diff between 'selfish' and 'selfless', either.


  10. John Parker

    title title title title title title title title title title title title title title title

    Peurile I know, but "IPONZ"...? Really? Phonetically they're not doing themselves any favours lol :)

    1. TimNevins
      Thumb Up

      I'ts an anagram

      IPONZ is an anagram of PONZI.

      PONZI is shorthand for any pyramid /MLM type scam whether is it at street level or Wall Street.

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